ABOLITION OF CAPITAL PUNISHMENT: Malaysia should rethink holistically and
practically and take the lead and be the proponent in Asean countries to
implement this.

THE death penalty is prescribed for several
offences, ie murder and waging war against the King (offences under the Penal
Code), kidnapping for ransom (an offence under The Kidnapping Act 1960 as
opposed to simple kidnapping under the Penal Code), drug trafficking (offences
under the Dangerous Drugs Act 1952 and other related drug statutes), certain
scheduled offences for activities in relation to possession of firearms and
ammunition or explosives [offences under the Firearms (Increased Penalties) Act
1971(FIPA)] and under the Internal Security Act 1960 (ISA) the latter of which
was repealed recently.

Most of the death penalties are mandatory upon finding of guilt. This means the
trial judge has no discretion in sentencing to consider a range of possible
sentences such as life imprisonment or a prescribed jail sentence which could
run up to the maximum sentence, being the death penalty, which of those is most
suited to be handed down on a convicted person after considering the myriad
circumstances in relation to the commission of the offence and/or the offender.

The Malaysian legislature used to entrust judges with this important
discretionary function. For instance, we used to give this sort of discretion to
the High Court judges in drug trafficking matters. But a previous
attorney-general was frustrated with the fact that judges were opting to
sentence certain drug trafficking convicted offenders to life imprisonment
rather than mete out the death penalty.

Those judges had good reasons in most cases for opting out of the death penalty.
In any case, if the judges were wrong there was always the appellate process
which the prosecution could resort to press their point for the capital
sentence.

But immaturity and myopic considerations seemed to have prevailed then. We have
been stuck with this knee-jerk culture of our legislature, a legislature that is
not well advised by the parliamentary draftsman and other relevant authorities.
As a result amendments made were jaundiced and lack cohesion with the general
scheme of the system.

Back in 2008 or so, the secretary-general of the Foreign Affairs Ministry, in an
important speech at the United Nations said that the Malaysian government was
considering steps to abolish the death penalty. It would be done incrementally.
I would have thought that the first step was to return the discretionary power
to the judges on all offences, especially drug trafficking cases.

Singapore has just amended its law to reflect this on drug trafficking cases and
a category of murder cases only and they apparently wanted to coordinate that
important move for change with Malaysia. As always, we allowed Singapore to
steal the thunder from us when we did nothing to implement that idea for the
change although the Attorney-General's Chambers claimed they had been toying
with some connected ideas and research about a year earlier.

Singapore now seems to have a slightly more liberal and just sentencing
principle in drug trafficking cases than us! What an irony! My colleague, senior
lawyer Roger Tan made this point in his recent article.

Malaysia should rethink holistically and practically the whole debate on the
abolition of the capital punishment and not merely on abolishment of the
mandatory death penalty and take the lead and be the proponent in Asean
countries to implement this actively.

As a Malaysian representative in the Asean Intergovernmental Commission on Human
Rights, (AICHR), I have mooted this idea on several occasions among my
colleagues in AICHR for all the 10-member Asean countries to consider.

Not so long ago, the de facto law minister had said Malaysia might not be ready
to abolish capital punishment.

Apparently, according to him, the majority of Malaysians are against such
abolishment. Of late the minister is proposing the idea of abolition of the
mandatory death sentence in drug trafficking cases.

This is the exact idea of the current law in Singapore. Yet in our country, we
take a longer time to consider this obvious reform when we could have taken the
lead.

Tan Sri Lee Lam Thye recently gave a dampening view and advocated against
abolition of the death penalty. I have several issues with Lee's observations.

Firstly, and with all due respect, I think that he may have misunderstood the
minister. He was not talking about abolition of the capital punishment
altogether. He was only referring to removing the law on mandatory capital
punishment and even then it was restricted to drug offences only. While I
support the idea of immediately removing the mandatory capital punishment in
drug cases, I am proposing that this should be merely a beginning of the
migration of our laws towards the incremental and eventual total abolition of
the death penalty. I propose we consider the following steps.

As a preliminary step, an immediate moratorium is granted in respect of all
cases pending executions until a wholesome decision has been arrived at by the
relevant authorities to be followed with the following measures:

FIRST, remove the mandatory death sentence on drug
trafficking cases;

SECOND, within a year of the above, remove mandatory death sentence on
all crimes without exception;

THIRD, Within three years from the first step above, abolish capital
punishment altogether in all cases except for waging war against the King and
kidnapping for ransom; and,

FOURTH, at an appropriate time after the three years from the first step
(but no longer than five years) capital punishment should be removed even in the
two offences of waging war against the King and kidnapping for ransom. In other
words , at the end of the third year from the first step, only two types of
cases continue to attract the death penalty but on a non-mandatory status until
further liberalisation as suggested above.

The reason I attribute seriousness to the two categories of cases is solely on
grounds of public revulsion and public policy and the heinous nature and the
presence of the element of extreme cruelty potentially surrounding the
circumstances of such crimes. These two crimes are normally executed in the
coldest, calculated and planned methods and have intimate nexus to violence.

It is almost always carried out by gangs and syndicates normally associated with
organised crimes or subversive elements. Crimes associated with drug trafficking
range from syndicated organised crimes to mere individual carriers or mules and
are solely driven for profit.

The lack of distinction between "hard" and "soft" drugs and between true
traffickers and mere mules' in the Malaysian law, doubles the complications in
sentencing.

Reasons for abolition of capital sentence. Among the common reasons advanced for
the abolition of capital punishment are:

IT is a cruel and inhumane punishment;

IT is irreversible if a wrong conviction occurs;

IT is contrary to human rights by world standards;

THE retribution theory or "an eye for an eye" is no longer an acceptable
theory in sentencing principles; and,

THE death penalty does not reduce specific crimes such as drug offences,
murder etc.

All the above reasons are sound and reasonable.

The writer is a former commissioner of Suhakam and currently the sole
Malaysian representative to the Asean Intergovernmental Commission on Human
Rights. The views he expressed herein are personal and not that of the
institutions he is associated with